Federal judge hears Virginia school bathroom policy case

ALEXANDRIA, Va. - Wednesday morning, a federal judge heard arguments in a lawsuit involving transgender bathroom policies within Northern Virginia schools. 

There is hope the federal judge may issue a decision by the end of the week. FOX 5 is also hearing other school districts may decide to sue. 

The two school districts that filed suit last week, the Fairfax County School Board and the Arlington County School Board, are asking the federal judge to address their "High Risk" status change and declare that they are not in violation of the federal Title IX law. 

READ MORE: Arlington County School's bathroom policy sparks protests

To backtrack some, it was in July that the U.S. Department of Education announced, after an investigation, it found five Northern Virginia school districts to be in violation of Title IX for having bathroom policies that allow transgender students to use the facility they identify with instead of the facility of their biological sex. 

All the school districts involved are adamant they are following both federal and state laws on these policies.

The lawsuits filed against the Department of Education and Secretary Linda McMahon note that in August, when the school districts refused to change their policies, the DOE then announced those same five were being placed on a "High Risk Status." 

This status change, according to the lawsuits, meant,"all Department funds including formula funding, discretionary grants, and impact aid grants" will be "done by reimbursement only." and subject to review. FCPS and APS's attorneys also say the Secretary of Education later sent a letter encouraging the Virginia Department of Education to also withhold federal funds that the state passes onto the districts. 

READ EMORE: Arlington County school board meeting sparks protest over transgender bathroom policies

FCPS Superintendent Dr. Michelle Reid wrote in a community letter, "DOE has attempted to designate FCPS as a "high-risk" entity, effectively freezing access to as much as $167 million in federal funding. This action takes away critical funds appropriated by Congress to support our most vulnerable children." 

"We assert the Department’s funding freeze violates Title IX, the Administrative Procedures Act, and the Spending Clause of the U.S. Constitution. In addition, the Department is incorrectly interpreting Title IX. Our transgender student policy is consistent with both state and federal law, including the Virginia Values Act, and is also supported by recent court decisions affirming protections for transgender students," Arlington County Public Schools Superintendent Dr. Francisco Duran shared in a community letter, noting the move impacts $23 million in federal funds the APS school system, it's students and families rely on. 

Attorneys for the APS and FCPS school board sued wanting to protect federal funding from being pulled in retaliation for refusing the DOE's mandate to change transgender policies. 

READ MORE: Arlington Public Schools return to class for start of 2025 school year

In court Tuesday, attorneys for the Department of Education argued that they're not "pulling" funds — they just want the school districts to pay up front so they can get a sort of receipt and reimburse the school districts. The school district attorneys voiced their concern with how the DOE will be scrutinizing federal dollars used moving forward. They argue it's the U.S. Department of Education that's breaking laws.  

There was also a jurisdictional argument in court — both sides arguing over whether this is a policy or financial matter. 

After nearly an hour, Hon. Rossie Alston Jr. recessed the courtroom. 

The U.S. Supreme Court previously upheld a 4th Circuit decision in the Gavin Grimm case, supporting bathroom access. 

Stick with FOX 5 for updates on this developing story.